Asleep at the Wheel

Press ignores congressional OK for martial law

On October 17, 2006, when George W. Bush signed the John Warner National Defense Authorization Act (NDAA) of 2007—a $538 billion military spending bill—he enacted into law a section called “Use of the Armed Forces in Major Public Emergencies.” In the view of many, this Act substantially changed fundamental laws of the United States, giving Bush—and all future U.S. presidents—new and sweeping powers to use the U.S. military anywhere in the United States, virtually as he sees fit—for disaster relief, crowd control, suppression of public disorder, or any “other condition” that might arise.

News coverage of these significant changes in the law has been virtually nonexistent. At nearly every stage when it might have received coverage, the news media have completely ignored the story: When the NDAA was debated, when it was passed in the House on September 29 and in the Senate on Sept. 30, 2006, when it was signed into law on October 17, and even when Senate Judiciary chair Patrick Leahy (D.-Vt.) introduced his own bill on February 7, 2007 to overturn the Oct. 17 measures, mainstream media have provided no news coverage. Only on April 24, 2007, when the first hearings were held on Leahy’s bill, did a handful of mainstream media reports appear.

What could happen under the new law? As just one example, let’s say hundreds of demonstrators in Boston engaged in civil disobedience, sitting-in on the Boston Common to protest the country’s policies in Iraq, and traffic ground to a halt. Under the new law, the president could order in the Massachusetts National Guard to clear out the protesters even if the Massachusetts governor opposed this.

Indeed, the president could order the Guard of any state into any other state—even if the governors of both states objected. Or the president could choose to use any element of the U.S. military—the Army, Air Force, Navy or Marines—to suppress a protest or carry out practically any kind of domestic action the president desired.

And all of this with essentially no oversight—or checks and balances—on how the commander-in-chief uses these powers. Basically, after sending the National Guard somewhere, he or she merely needs to report to Congress every couple of weeks to let them know what the Guard is doing.

The law is so vague and far-reaching that numerous, normally conservative military and law enforcement groups, including the National Guard Association, the National Sheriffs’ Association and the Adjutants General Association, have publicly come out against it, pledging their support for a new, bipartisan Senate bill, S. 513, from senators Leahy and Christopher Bond (R.-Mo.) that would overturn all the changes in law that occurred this past October. (There’s an identical, bipartisan companion bill in the House as well.)

It’s striking that even with the National Guard Association itself opposing Bush in this matter, there’s been next to no news coverage. Indeed, the Association (2/7/07) called the Act a “dangerous precedent,” with “the exploitation of the language of the Insurrection Act as a surreptitious method to gain special presidential authority where clearly the Congress has never intended the federal executive to hold sway.” (Rather than spelling out the sweeping changes it effected, the act made minor changes in the 1807 Insurrection Act that had major consequences.)

The National Governors Association is displeased as well. In rare unanimity, the association called, on February 2, 2007, for the new law to be overturned, saying that it “unnecessarily expanded the president’s authority to federalize the National Guard,” a change “drafted without consultation with the governors and without full discussion or debate.” All 50 U.S. governors have signed on to the association’s letter of opposition—including all 22 Republican governors.

The Adjutants General Association, which represents officers responsible for National Guard training and readiness, also stands in opposition to the Act, saying (2/7/07) that the language of the NDAA “significantly broadens the president’s ability to declare martial law and mobilize the National Guard under national command without consulting with the governors.” It adds that this broadening was “completely unnecessary” and done without any “committee or floor debate in either legislative chamber and with explicit opposition from the governors.”

The National Sheriffs’ Association declared itself (2/20/07)

gravely concerned that such empowering language, as well as ambiguity of the new language, particularly its reference to the “other conditions” under which the president can invoke the Act, creates the likelihood that the Act will be invoked more frequently and hastily during such emergencies.

One might think that major military and law enforcement organizations and the united governors registering their displeasure would spark some news coverage, investigation and public debate. Yet the first news coverage did not appear until the first hearings on the Leahy/Bond bill, over six months after the bill was first signed. Even then, there was just a handful of stories—among them wire stories by Cox (4/24/07), McClatchy (4/25/07) and AP (4/25/07), and editorials in the Winston-Salem Journal (4/27/07) and Newsday (4/27/07).

Until the hearings, none of the many twists and turns of this story since the summer of 2006 has resulted in a single news story in any mainstream outlet we could identify—including the New York Times, Washington Post, Wall Street Journal, L.A. Times, Chicago Tribune, USA Today, Time, Newsweek and U.S. News & World Report.

Searches of transcripts for ABC, CBS, NBC, Fox News Channel, MSNBC, CNBC, CNN, PBS and NPR likewise revealed no coverage. Even journals of opinion like the Nation, New Republic, National Review and Weekly Standard have managed to avoid the topic.

While there was no news coverage, four months and two days after the bill was signed into law, the New York Times (2/19/07) did take notice with an editorial headlined “Making Martial Law Easier.” Though the nation’s paper of record has yet to treat the changes in the law as a news story, the Times did make several noteworthy points:

A disturbing recent phenomenon in Washington is that laws that strike to the heart of American democracy have been passed in the dead of night. So it was with a provision quietly tucked into the enormous defense budget bill at the Bush administration’s behest that makes it easier for a president to override local control of law enforcement and declare martial law. . . . The president may now use military troops as a domestic police force in response to a natural disaster, a disease outbreak, terrorist attack or to any “other condition.”

The most substantive online coverage of the legal change was in the progressive online journal Toward Freedom (10/26/06), posted by Frank Morales shortly after Bush signed the bill. Morales wrote that

the de-facto repeal of the Posse Comitatus Act (PCA) is an ominous assault on American democratic tradition and jurisprudence. The 1878 Act . . . is the only U.S. criminal statute that outlaws military operations directed against the American people under the cover of “law enforcement.” As such, it has been the best protection we’ve had against the power-hungry intentions of an unscrupulous and reckless executive, an executive intent on using force to enforce its will.

Toward Freedom’s article was reposted on a number of blogs, and letters to the editor based on its reporting appeared in a handful of papers that otherwise failed to mention the issue. A letter by Eve Nielsen in the Centralia, Wash., Chronicle (11/15/06) was typical, warning that the bill

enables Bush to declare a “national emergency,” to usurp control over the National Guard and to use the military against American citizens in this country—in other words, martial law. Serious investigation into Bush’s crimes or impeachment could constitute such an emergency.

What does it say about the fourth estate that such significant changes occur in our laws without news media coverage and without the intelligent and vigorous public debate one would hope for in the world’s oldest democracy? The Jeffersonian ideal is of a well-informed citizenry capable of intelligent self-determination. All too often, thanks to a media asleep at the wheel, precious few even know that something has happened.

Research for this article was conducted by Rutgers undergraduates Sean Karpowicz, Kyle Pucciarello and Annie Sgrignoli. Doctoral student Mary Nucci provided consultation in the use of Lexis-Nexis.